Anyone who shops regularly on online marketplaces will stumble across counterfeit products again and again. But are there penalties for placing an order? Does it matter if I recognize the fake or not? TECHBOOK talks to a lawyer and explains.
Marketplaces like AliExpress, Wish, Ebay, and even Amazon are also populated with counterfeit products. TECHBOOK already revealed the rip-off with cheap Apple headphones on Amazon. The tech and fashion sectors are particularly vulnerable to counterfeit products. TECHBOOK clarifies the most important questions with attorney Michael Pluchke from the Chancellery Pluchke from Berlin, whose area of expertise includes trademark law.
What is a fake?
Basically, according to Pluchke, there is the principle of freedom from imitation. But this only works up to a certain point. “Only when there is a special protection right, i.e. a trademark infringement, are buyers in the area in which it is legally relevant. This is the case when a third-party trademark or registered design is copied.”
This is the case, for example, when an SD card manufacturer from China prints the name SanDisk on the cards or counterfeit shoes bear the Adidas logo.
Am I liable to prosecution if I buy counterfeit goods?
According to Pluchke, this answer depends on whether someone is ordering goods for private use or with the intention of reselling them. In the case of high-priced items, such as iPhones or Louis Vuitton bags, most judges believe that the commercial interest already exists when buying two to three counterfeit products. But as long as you order goods for private use, buyers are not liable to prosecution.
What penalties and fees should I expect if I buy counterfeit goods online?
If several products are ordered and it can then be assumed that they will be resold, there are sometimes severe penalties, so Pluchke told TECHBOOK. “If there are registered designs for the corresponding product, then the introduction is already legally relevant and is threatened with imprisonment for up to three years.”
Although private customers are not liable to prosecution, they still have to reckon with additional costs. “Of course, customs may still confiscate the goods.” Right holders can arrange for customs to first store suspicious products and then examine them. Not only does this take a long time, but there are also storage costs for the buyer. It is even thicker for goods orders that come from non-EU countries. Here, an additional 19 percent import sales tax is due from a goods value of 20 euros. Incidentally, the latter also applies to original goods. Expect to have to pay the import sales tax directly to the parcel carrier.
Does it make a difference whether I know about it or not?
In the business area, which, as already mentioned, is reached quickly, it does play a role in criminal law whether there is an intention behind it. The lack of knowledge does not protect against claims for damages.
What happens to counterfeit goods at customs?
Here, too, Pluchke distinguishes between the purchase of a single counterfeit for private use and several products for commercial resale. “If it is a trademark infringement, i.e. for business purposes, the goods will be destroyed by customs at the request of the rights holder. If you only order a product for yourself, you will actually receive the goods after paying taxes and fees.”
TECHBOOK means
“Even if private buyers are not liable to prosecution, we still advise against buying counterfeit goods. Technical devices often do not comply with the applicable EU regulations and should therefore not be operated at all. It has happened more than once that inferior fake batteries have caught fire and the owners have been injured.” – Andreas Filbig, editor